Divining the Framers' Intetions: The Immunity Stanadard for Criminal Proceedings Under the Utah Constitution

While a derivative use immunity regime may be constitutional in theory, the doctrine suffers from an unconstitutional breakdown in practice. Since Kastigar was decided, many jurisdictions have experimented with derivative use immunity. However, those jurisdictions that have carefully examined the practicality of the derivative use immunity doctrine have found it does not work in practice." The prosecution invariably uses the witness' compelled testimony against the witness in numerous and significant ways. While any one use may not be abhorrent in itself, when added together they culminate in an unconstitutional end.

Although the Kastigar Court realized that the compelled witness should be in "substantially the same position" as the silent witness," the Court failed to look forward and carefully think about the potential non-evidentiary advantages the prosecution might derive from derivative use immunity. These advantages that alone are unconstitutional, and several states have held as much. In addition to the non-evidentiary problems with derivative use immunity, the Utah Supreme Court has additional issues to consider. The heightened importance of immunity in Utah's territorial history is integral to determining how broad the privilege is in Utah.

Prior to becoming a state, the framers of the Utah Constitution suffered heavily at the hands of the federal government. These memories were fresh in the minds of the framers, and for that reason alone the Utah Supreme Court should hesitate to allow a derivative use immunity regime.